~ a former prosecutor to defend you

On August 23, 2018, the California Supreme Court expanded the voters’ right to referendum in City of Morgan Hill v. Bushey, et al., S243042.

Asit Panwala argued on behalf of the Morgan Hill Hotel Coalition that voters may challenge a zoning ordinance by referendum even if the ordinance would bring the zoning into compliance with a recently amended general plan. To watch the webcast, click here.

The Supreme Court held voters have the power to challenge a zoning ordinance even if a successful referendum would temporarily leave in place a zoning ordinance that does not comply with the general plan. The Court found that the people may exercise their Constitutional right to referendum when there are other means to make the zoning ordinance and general plan consistent. The City and developer had argued that consistency requirement of Government Code § 65860 pre-empted the People’s right to referendum, and that it should be removed from the ballot. The Supreme Court concluded that if there are other zoning districts, or if new zoning districts could be created that would comply with the general plan if voters rejected the proposed measure, then the City must hold the referendum.

On April 1, 2015, the City of Morgan Hill sought to change the zoning for a parcel from “light-industrial” to “general commercial” after a recent general plan amendment that changed the parcel to commercial from industrial. The Hotel Coalition opposed it, but the City Council approved it by a 3-2 vote. On May 1, 2015, the Hotel Coalition submitted more than 4,000 signatures on a petition for referendum, requiring the City to repeal the ordinance or place it on the ballot. The City did neither. The Hotel Coalition sued, and the City placed the measure on the ballot, only to file an action to remove it.

On March 29, 2016, the trial court ordered the referendum removed from the ballot while relying on deBottari v. City of Norco (1985) 171 Cal.App.3d 1204. Panwala successfully obtained a stay through a writ of supersedeas to prevent the developer (River Park Hospitality) from building.

Panwala persuaded the Sixth District Court of Appeal to reverse the trial court’s decision in City of Morgan Hill v. Bushey (2017) 12 Cal.App.5th 34. The appellate court concluded that there were other commercial zoning districts available, and ordered the City to hold a referendum. Subsequently, the California Supreme Court granted review.

Although the City contested that the existence of other commercial zoning districts that do not permit hotel use, the Supreme Court expanded the rule farther than the Sixth District. In its opinion, the Court found that if the City had any means by which it could remedy the inconsistency, the referendum must be held. For example, the City could create new commercial zoning districts that do not permit hotel use. The Supreme Court even suggested that City may wish to consider re-amending the general plan if no other zoning district existed or could be created, but left that as a question to be answered another day.

Panwala’s advocacy means that the City’s attempt to create instant wealth for a single developer has been thwarted until the voters have a chance to weigh in. The Law Office of Asit Panwala was assisted by the Law Office of J. Randall Toch in this matter. Asit is particularly thankful to the Hotel Coalition, and his wife.

Usually when one needs to hire an attorney, the situation is already fraught with peril. It is unlikely that one has a great deal of time to decide. Often clients rely on referrals.

On May 30, 2018, Asit Panwala was one of the few attorneys who has tried murder cases as well as argue in the California Supreme Court. It’s rare because the skill set for each are vastly different. An excellent trial attorney needs to master the facts, present evidence, and sum effectively to persuade a jury of his position. A successful appellant attorney needs to master the law, write persuasively, and explain why the rule of law he or she advocates for is the right one.

If you are considering hiring Asit, watch him argue in the California Supreme Court. Supreme Court Webcast

On May 30, 2018, Asit Panwala argued that voters have the right to exercise the power of referendum when cities change zoning to become consistent with a recent general plan amendment. In City of Morgan Hill v. Bushey, et al., S243042, the City of Morgan Hill refused to hold an election even though they conceded that it had a sufficient number of signatures and was timely filed.

The City argued that voters had no right to reject their choice of zoning because the voters cannot reject consistent zoning when the alternative is to keep inconsistent zoning in place. Panwala argued that voters should be exercise that power because there are other commercial zoning districts available to the City that do not permit hotel use that the City could readily adopt. He also argued that the People’s reserve power of referendum would be rendered meaningless otherwise.

The ballot measure would have allowed the voters to decide whether a three-acre parcel should have been rezoned at the behest of a developer who plans to build a hotel. It would have immediately doubled the value of the land, and provided the out-of-town developer with a $2 million dollar windfall. Local hotels opposed the ordinance. The Supreme Court will issue a decision in 90 days.

Asit Panwala was co-counsel with Randy Toch of the Law Office of J. Randall Toch in this matter. Both pictured above after the argument.

In 2012, during a visit at the San Francisco Superior Courthouse, I happened to witness a trial with then District Attorney Asit Panwala. It was an experience I’ll never forget; not because it was my first time witnessing a live trial, but rather because of Asit’s exceptional performance. I felt like I was watching a scripted TV show; he was that prepared and engaged. As a homicide prosecutor at the time, Asit presented the facts of that particular case with utmost precision, and dare I say, brevity. His obvious preparation and experience reflected in the eyes of the jurors whom I paid close attention to. They were just as mesmerized by his presentation skills as I was. Asit prevailed in that case (to none of my surprise).

So, fast forward to 2017, when I sought out an attorney for my Civil Claim, I was exceedingly happy to realize that Asit had left the DA’s office and started his own law practice. Despite the possibility that he may not have specialized in my type of case, with legal matters – especially ones that may go to trial – I was fully aware that selecting the right attorney was more about judging the person as a whole than it was about judging the specific experience. The law is the law, and Asit Panwala serves people well by knowing it inside and out. He is a critical thinker, thorough, and has wide-ranging experience. Also, if a case is called to trial, I can think of no better person to heed that call than Asit Panwala: In that realm, he’s an absolute force to be reckoned with. I saw it with my own eyes.

Two years ago, Asit Panwala of the Law Office of Asit Panwala and Randy Toch of the Law Office of J. Randall Toch argued in Santa Clara County Superior Court that voters have the right to exercise the power of referendum even if by rejecting the ordinance, they kept inconsistent zoning in place.

The state’s consistency requirement requires cities to amend zoning to be consistent with the general plan. The inconsistency was created when the City of Morgan Hill amended the general plan for a three-acre parcel from industrial to commercial in order to facilitate the building of a hotel by an out-of-town developer, but left the zoning behind as “light industrial.” The City then sought to remedy the inconsistency it created by amending the zoning to “general commercial.” More than 2500 registered voters signed a petition for referendum challenging the ordinance, but the City refused to have a referendum. It later acquiesced and placed it on the ballot, and then filed an action to remove it.

We argued that voters do have the right to accept or reject the ordinance because there are eleven other commercial zoning districts that the City could chose if the City’s choice is rejected. The City argued that the zoning had become invalid and the question was a simple one-a choice between zoning that is invalid and one that is valid, and hence no choice at all. They argued that for over thirty years that Debottari was the law of the land and controlling on this issue. They shook their heads in disbelief at our arguments.

Although the trial court ruled for the City, the Sixth District Court of Appeal agreed with us in City of Morgan Hill v. Bushey (2017) 12 Cal.App.5th 34, expanding the right to referendum even when zoning would remain inconsistent as a result.

Last week, the First District Court of Appeal grappled with the same issue in Save Lafayette v. City of Lafayette, and agreed with the Sixth District and us. We congratulate Gary Garfinkel for persuading the Court that voters do have the right to referendum and that ignoring the Constitution would imperil democracy. See Save Lafayette’s decision below. Save Lafayette v. City of Lafayette, A149342 – Feb 21 2018

The League of California Cities officially took no position on whether the voters should have the right to referendum even if it allows lawfully enacted, but now inconsistent zoning remain in place. Nevertheless, their brief urged the Supreme Court to find that there is an implied waiver of the People’s Constitutional rights if they did not object to the general plan amendment. The Law Office of Asit Panwala and the Law Office of J. Randall Toch filed an answer brief highlighting that there is no precedent for finding a Constitutional right has been waived without knowledge, consent or warning.

At issue is the very notion of democracy; when voters sign petition for a referendum, they should expect that they will be able to exercise their right to approve or reject the legislation adopted by their city council. In this case, the City Council’s decision to rezone land would not only give an out-of-town developer a huge windfall, but also allow another hotel to be built. More than 2,500 registered voters signed the petition, and yet the City to allow them to cast their ballots. The Law Office of Asit Panwala and the Law Office J. Randall Toch sued the City on behalf of the Hotel Coalition. The Sixth District agreed with them in City of Morgan Hill v. Bushey (2017) 12 Cal.App.5th 34. The brief filed today in response to the League’s amicus brief is attached.

Everyone needs an attorney who holds fast and doesn’t fold because of the fear of trial. My client, R.S., was charged with both auto-burglary and possession of a firearm. The police had captured him breaking into a car window on video and arrested him with the stolen backpack. However, the case lingered for a year because the District Attorney was also charging him for a gun found hidden in a car that R.S. was traveling in before he broke into the car.

The gun was found hidden underneath the front passenger floorboard where he was sitting, but it was R.S.’s friend’s car. There were no prints on the gun and the DNA evidence was inconclusive. Not even the police who drove the car away realized it was there. How many times have you been in a car and had no idea what the driver keeps in his car?

The Assistant District Attorney however insisted that my client admit that the gun is his despite the lack of evidence. Every time, we would come to court, she would lower her offer. How about a misdemeanor gun charge? How about a deferred entry of judgement? Finally, with the last day for trial less than a few days away, she folded. She folded because she didn’t have a case, but she would have accepted a guilty plea if I had not held fast. Now, my R.S. is enrolled in City College and will have a chance to reduce his felony auto-burglary conviction to a misdemeanor within a year. Everyone needs an attorney who knows when to hold fast.

This murder case captured media attention across the county after Trump used Zarate Garcia as exhibit number one as to why our borders need to be tighter and that sanctuary cities put our citizens at risk. Trump argued that Kate’s life would not have been lost if San Francisco was not a sanctuary city. Supporters of sanctuary cities argue that a single man’s actions should not dictate how we formulate policy regarding undocumented people living and working within our borders. Former Sheriff Mirkarimi made the fateful decision to demand that the feds bring Garcia back to San Francisco for a mere marijuana case. When the case was dismissed, the sheriff’s department then released Garcia. It just did not make sense to bring him back in the first place unless Garcia was facing serious charges.

Regardless of the immigration debate, why did the jury acquit Garcia of the most serious charges? I expected that jury would struggle between murder in the second degree and involuntary manslaughter. Instead, the jury found him guilty of possessing a gun as a felon and acquitted him of murder and the lesser charges.

The jury did not find Garcia responsible because they must have believed that the gun accidentally went off. Matt Gonzales, Garcia’s attorney, presented evidence that this type of gun has accidentally fired in the past. Further, Gonzales obtained a concession from the medical examiner that the bullet was deformed consistent with a ricochet. There was also testimony that there was an indentation on the pier that would have been caused by a stray bullet. These facts supported the notion that Garcia was not aiming at Steinle. The People presented evidence to the contrary, but clearly it did not convince the jury.

Second, the defense presented video evidence showing a group of people congregating in the same spot where Garcia later sat. It supported the Defendant’s theory that Garcia had found a gun discarded there. It seems like a leap that the gun went off accidentally, but there was no witness to shooting and one could not make out what happened from surveillance video.

In Garcia’s statement to the police, he admitted shooting the gun at a seal. His statement was wildly inconsistent with what we knew to be true. For example, he claimed he was five feet away from Steinle when in fact he was more than 90 feet away. The back and forth between the officers and him did not help clarify, and the defense claimed that Garcia only admitted shooting the gun after the police failed to accept the explanation that it was an accident. Gonzales’s ability to have the jury disregard portions of his client’s statement was crucial to the acquittal of the murder charges.

Immediately afterwards, Trump criticized the verdict. Matt Gonzales notably said that the President should refrain from criticizing the verdict because by doing so, he is criticizing the presumption of innocence and the burden of proof of beyond a reasonable doubt.

“I was driving behind my girlfriend when she got into a terrible accident on 880. I parked my car and helped her out, just before someone else hit her car with his. My heart was beating rapidly, and I was excitable when I spoke to the officers. They suspected me of drinking and driving and asked me to take their breath tests. I was surprised when they told me that my BAC was over the legal limit. I had not had a drink for eight hours.”

I retained the Law Office of Asit Panwala, and he quickly discerned that my diabetic condition had affected the accuracy of the breath tests. The District Attorney refrained from charging me, but the DMV sought to suspend my license.

Asit called an expert, Jan Seminoff, at the DMV hearing, who explained how uncontrolled diabetes will lead one’s body to produce isopropanol. Seminoff also explained that the PAS devices cannot differentiate between ethyl alcohol and isopropanol, and that one could not be certain that that the results were accurate in this case. The DMV hearing officer was convinced, but he wrongly believed the law did not differentiate between different types of alcohol. Thus, the hearing officer suspended my license.

Asit is persistent. He told me that we should file a writ of mandamus in Superior Court challenging the DMV. The deputy attorney general fought him vigorously, but Asit prevailed and the Superior Court ordered the DMV to reverse the suspension. I am grateful for Asit’s help. D.C.

Life can throw a wrench in your plans. My ex-wife abused me for 2 years – physically and mentally. Unbeknownst to me, she had been recording our arguments. One day while going to work, the police confronted and arrested me. Asit was recommended to me by an acquaintance. Asit was my top choice, but he was very upfront and mentioned that he had an upcoming trial. I decided to go with another lawyer.

Six months later, the case was still dragging with no progress. I reached out to Asit to get his professional opinion. We set up a consultation and Asit was extremely diligent He asked for my police records and relevant discovery. Prior to our conversation, Asit had gone through all the details of the case. In that one hour discussion, I felt he knew my case details better than my existing attorney. I switched to him.

Asit is very meticulous, hardworking and professional. He filed a motion to compel, forcing the Deputy District Attorney to acknowledge that they had lost the recordings of the police interviews of my ex-wife, hamstringing our ability to cross-examine her. I went to trial, but I had a lot on the line because I am here on a work visa.

I was nervous as we picked a jury, but Asit was personable and calm. Asit gave a remarkable opening statement. The next day, the deputy district attorney asked for a mistrial because he did not believe he could get a conviction after Asit’s powerful opening statement. He claimed that it was unfair that Asit had commented on the fact that my ex-wife had unilaterally withdrew money from our joint account after charges were filed. The judge told him it was time to reconsider his plea offer. He offered a plea to disturbing the peace, and I accepted it because it would not affect my immigration status. Thank you Asit, for standing by my side. B.P.